torts II

duty

elements

breach

Causation/proximate cause

Standing/damages

defenses

Negligence- when a person’s conduct, in protecting others, isn’t that of a reasonably prudent person

standard-D must act as a reasonably prudent person under like circumstances

1. Duty 2. Breach of duty 3.Causation/proximate cause

1. what in fact happened 2. that D acted unreasonably

1. cause in fact and 2. proximately caused Purpose of 2 is to limit liability. Let D off hook for harms that caused, but not foreseeable. Cause in fact tests; a. but for b. substantial factor c. indivisible injury also what difference did neg. act make -(boy on bridge with electrical wire) -loss of chance (cts disagree usually need to prove 50%+ chance) Proximate cause; policy (similar to scope of duty) 1.that particular kind of harm must be foreseen disagreement here 2. direct consequence; no need for foreseeability if harm is direct consequence of act. Intervening/LIABLE; another act intervened between d’s act and harm. -poemis rule -rescue doctrine Superceding/NOT CAUSATION; unforeseeable intervening act. Thin Skull rule; if harm is same foreseen then as to amount of harm. “D takes P as finds him”.

survival action-recovery permitted for loss to estate and include damages for pain and s before death. Wrongful death-benefit of survivors who suffer harm from death.(limited to pecuniary loss-may include loss of society, companionship, advice and support) Joint and several liability applied when; 1. consipiracy or concerted action 2. indivisible harm 3. creates an additional harm by another act. 4. vicarious liability 5. other policy reasons; summer v. tice.

Contributory negligence; when conduct by P creates unreasonable risk of harm to P (and combines with D’s negligence to harm P) to ALL -secondary assumption of risk -not complete defense but mitigates. comparative negligence; pure form- doesn’t matter what % of fault p had, can recover d’s %. Modified form; can recover if D’s negligence was 50% or greater.

Factors to consider; -physical disability -children of like age… -unless kids doing adult or dangerous activities -minimum standard of knowledge -AND actual knowledge

Factors; -Custom or usage; Ok if relevant -violation of statute (see per se) -res ipsa loquitor;(presumption of negligence) 1. harm ordinarily not occur in absence of negligence 2. exclusive control by D 3. p or 3rd party did not cause harm

Per se/ statutory violation

Statute designed to protect against this type of harm AND To protect against class which P is member

Did D violate statute?

Trespasser- Those who enter without permission.

Limited duty; -if reason to know of use, then duty to warn of hidden dangers -if child and attractive nuisance, then standard -can’t willfully act to cause injury

PAR to ALL -complete defense IF P knew of the risk and voluntarily assumed the risk. Knowledge implied where the risk is one that reasonable person would be aware. -NO PAR where no reasonable alternative. -NEVER for intentional torts or if statute protects class

Licensees- Includes social guests Many States have abolished this category. Instead use invitee.

Limited duty -if reason to know of danger and that licensee might encounter it, then duty to warn or eliminate

Official licensees subject to firefighter rule; immunity for negligent act if reason for visit. MN abolished rule, uses PAR for foreseeable, obvious risks.

Invitees; business purpose, in scope of invitation, open to public

Standard duty

professionals To use knowledge, skill and care of professional. Factors; 1. specialist/general 2. local v. national practice

1. standard of care 2. that d was negligent in deviating from standard of care 3. deviation was direct cause of P’s harm

to disclose material risks. Informed consent theory/usually medical malpractice cases

1. physician failed to disclose material risk 2. that she knew or should have known about. 3. that risk materialized 4. that reasonable persons in p’s position would not have consented AND p wouldn’t have consented.

To act positively nonfeasance

Limited duty; 1. if d has control over instrumentalitiy of p’s harm 2. if D was responsible for placing P in position of danger (or at risk). 3. special relationship (employor-employee, parent-child etc.) 4. rescue effort; if D leaves p in worse position after beginning rescue effort 5. if no duty to rescue, but does anyway then standard duty.

Good Samaritan statutes; create liability only if willful or reckless behavior

To control 3rd persons

Limited duty; 1. special relationship a. parent/minor b. custodian c. employee… d. mental health professional… e. customer/business f. between d and p or d and 3rd person. 2. D has ability to control 3rd person or warn p at risk 3. alcohol covered under dramshop statutes.

Protect against emotional harm NIED

E motional distress is objective Loss of consortium for spouses. Either 1. zone of danger a. p in zone of danger b. contemporaneously experience fear c. for own safety at moment. 2. bystander rule. a. p present at scene of injury and b. aware of it while occurring c. closely related

Arguments against policy; no real compensation (just wealthy messed up people) and no deterrence.

To unborn children

prenatal injuries ok if child viable at negligent act and born alive. Preconception injuries-maybe ok if causation met. Wrongful birth-ok, damages limited. Wrongful life-child action for economic loss (no pain and s) Wrongful conception- parent’s damages offset by benefits of having child.

Strict liability

Dangerous or abnormally dangerous activities

restatement second §§519-529; strict liability for abnormally dangerous activities 1. creates reasonable foreseeable risk of physical harm 2. risk is significant 3. risk remains even if reasonable care is exercised. COURTS USE DISCRETION lots of inconsistencies. utility co. never strictly liable

not all jurisdictions have accepted restatement second.

generally comparative fault rules apply so affirmative defenses like contributory negligence are partial only.

Products liability; this is for new products. And not for services. Used products; only if re-conditioned/re-furbished. Also only for retail sellers not private other theories for harm from defective products; 1. misrepresentation/fraud (no need for privity) tort based. a. representation of product oral or written (fact not opinion). That was wrong. b. P relied on it c. representation was material Also; d’s state of mind intentional/ reckless /negligent see outline *statutory-consumer protection. In addition to common law cause. 2. breach of warranty; contract law; implied that product not defective. Easier to prove then tort. a. purely economic loss b. consequential economic loss 3. expressed warranty contract law. 4. nuisance; like for gun manufacturers etc.

Manufacturing defect; if product departs from intended design regardless of manufa..care.

1. consumer expectation standard. objective diff. between what cust. Expects and what product delivers 2. res ipsa loquitor-expert testimony used to show defective 3. food cases-difficult issues of proof. Here need to rule out other causes and two tests; a. foreign natural test (chicken bone ok in pot pie) b. reasonable expectation test (what cust. Would have expected ok). *need to prove product reached consumer in defective state.

Which D’s are liable; 1. sellers 2. lessors 3. successor corporations (sometimes, depending on contract) 4. component manufacturers (sometimes, depending on …) 5. NO service providers (difference between service and product).

Who recovers What losses; consumer/ purchasers other users or bystanders if foreseeable to D. what losses; YES personal injury or property damages NOT cost of item (under contract law)

contributory negligence= -Product misuse -Failure to mitigate or avoid damages. -secondary assumption of the risk.

Design defect; if foreseeable risk of harm posed by design could have been reduced by using reasonable alternative design AND omission makes product not reasonable safe. hint; every product same defect

1. risk utility standard; risk of design outweigh utility AND 2. prove feasible alternatives to design - there may be no safe design OR 4. non compliance with safety regulations. (per se) AND 5. manuf…obligated to design for intended use AND foreseeable unintended uses.

-Product misuse -Failure to mitigate or avoid damages.

Inadequate warnings/ failure to warn when foreseeable risk could have been reduced or avoided by provision of warning/instruction and omission makes not reasonably safe.

1. manuf…has actual or constructive knowledge of danger to users. 2. foreseeable use AND misuse 3. warning not there or inadequate a. attract attention to those at risk b. explain mode of injury c. instructions on how to use safely. some jurisdictions use “heading presumption” that p would have acted different had been warned.

-Product misuse -Failure to mitigate or avoid damages. 1. Patent/obvious dangers carry own warnings 2. sophisticated users –no duty to warn 3. learned intermediary. Manuf fulfills duty by warning intermediary (pharmacy etc.) 4. sophisticated intermediary. (employer buys for employee etc.) SI must be well informed and it be reasonable for manu to rely on them. -considerations of recall (financial etc.)

duty/cause of action elements breach cause/proximate cause damages/standing defenses

Defamation; purpose to protect reputation weigh against freedom of speech

libel; recorded in permanent form

1. defamatory statement 2. made to 3rd person 3. of and concerning p

if P= public official or public figure then must show; 1. common law elements AND 2. actual malice (knowing falsehood or reckless disregard) 3. statement false If private figure is P, but issue is Public concern, then must show; 1. common law elements 2. fault in publishing 3. actual damage (varies for state) 4. that statement is false. Private person and private concern then damages can be presumed and D can be held liable regardless of constitutional issues.

p can be whole group, depending on size and statement “whole or most of group”

damages; libel; presumed slander; 1. must be proven (special damages) 2. except for slander per se, when subject regards; a. serious crime b. loathsome disease c. p’s business capability etc. d. serious sexual misconduct

1. Truth; D has burden 2. Constitutional 1st amendment; 3. privilege; -absolute official -qualified official -fair comment -in one’s own interest -report crime -reporting public… 4. to mitigate; harm wasn’t that bad, nobody liked you to start with. 5. retractions statutes; give d chance to retract, make p ask d to. 6. consent

slander; said

Invasion of privacy different from defamation because true, but private or embarrassing. jurisdictions very different in what they recognize.

intrusion-like stalking, etc. physically or otherwise

1. Intentional 2. Reasonable expectation of privacy 3. Highly offensive

-If info disclosed is of public significance or lawfully obtained then can be protected by the first amendment (labor union case) (woman fleeing abusive husband case). Most states don’t recognized

appropriation- protects indiv. identity

1. D appropriates 2. For own use and benefit 3. P’s name or likeness

Public disclosure – protects private info about P

1. Facts about P’s private life 2. communicated to public at large 3. highly offensive to reasonable person 4. matter disclosed not of legitimate concern to public 5. No defamation if facts disclosed are true

False light best used when not exactly false but sort of. *most don’t recognize because too close to slander

1. highly offensive 2. D acts with knowledge or reckless disregard to 3. falsity of publicized matter 4. false light in which p would be placed